Retired U.S. Assistant chief Immigraton Judge Robert Weisel writhes in the NY Daily News:
As the Trump administration’s immigration agenda sows fear and instability, New Yorkers should be proud that our state is the national leader in ensuring due process for all. In New York, no detained person is forced to face immigration court without an attorney.
Having served nearly three decades as an immigration judge, I can affirm that access to counsel for people facing deportation is an essential component of fairness and an important way to strengthen communities throughout our state.
Consider “Louis’s” story. A lawful permanent resident for more than two decades, “Louis” was a devoted father and beloved basketball and football coach in Rochester when Immigration and Customs Enforcement detained him based on a 10-year-old conviction. While he was detained in Batavia, Louis’s family faced crippling emotional and financial hardship without his income and support. His oldest child suffered a substantial deterioration in his mental health and his young children struggled to cope with their father’s absence.
Had Louis not been a New Yorker, odds are he would have faced deportation without a lawyer. His family would have continued to struggle without their father and, based on the statistical outcomes for unrepresented immigrants, he likely would have been deported — permanently separated from his children and fiancée.
Thankfully, Louis’s case did take place in New York. Louis and his attorneys worked together and won his immigration case. He is now back with his family and coaching sports in his community.
Unlike in criminal court, immigrants in deportation proceedings are not guaranteed an attorney if they cannot hire one. As a result, nearly 70% of detained immigrants and approximately 30% of non-detained immigrants nationwide in deportation proceedings lack legal representation, facing the terrifying prospect of separation from their families while confronting the complexities of U.S. immigration law alone. Representation doesn’t guarantee any outcome, but it does ensure that everyone has access to due process and a fair day in court.
I was the assistant chief immigration judge for New York City and New Jersey in 2013 when a small pilot project, The New York Immigrant Family Unity Project, guaranteed attorneys for immigrants at one New York City immigration court. NYIFUP demonstrated the importance of publicly-funded deportation defense, raising the level of practice in the court and strengthening both fairness and efficiency.
The Vera Institute of Justice evaluated NYIFUP, finding that 48% of immigrants succeeded in their cases, while unrepresented immigrants in the same court were successful only 4% of the time. NYIFUP also produced other benefits — including keeping families together and generating $2.7 million in annual tax revenues from clients who established the right to remain in the United States.
The success of the pilot soon spread NYIFUP statewide. I was proud to partner with Vera when it launched a similar assigned counsel project in the Hudson Valley. Now, as a part of Gov. Cuomo’s Liberty Defense Project, New York State funds deportation defense at all immigration courts upstate, while the New York City Council supports it in New York City.
New York should be proud of its national leadership in ensuring that every detained immigrant in our state has access to representation. However, gaps remain in our state’s approach to ensuring due process for all. Notably, there are 19,000 New Yorkers living in our communities while in deportation proceedings — as opposed to being in detention — who are unable to afford an attorney to represent them.
New York must continue to guarantee counsel for all immigrants facing deportation, and other states should join in our successful experiment.
Weisel served first as an immigration judge, and then as assistant chief immigration judge, in the New York Immigration Court from 1989 until his retirement in 2016. He currently serves as a Senior Consultant to the United Nations High Commissioner for Refugees, advising on issues relating to access to counsel in immigration court proceedings.
*************************************
My good friend and colleague Bob Weisel is “one of the best ever” going back to the early days of EOIR when folks on all levels were actually committed, however imperfectly, to fashioning a better, more professional, and fairer U.S. Immigration Court that would exemplify and promote Due Process.
Of course, our efforts were sometimes flawed. But those of us involved (I happened to be working for the “Legacy INS” at that time which had “spun off” the Immigration Courts into a new entity, EOIR) believed we were learning from our mistakes and successes and were part of an “upward arc” of justice that would, at an appropriate time, evolve into a truly independent court system.
Today, that noble quest has been abandoned in favor of a “race to the bottom” where worst practices are encouraged, “judges” are expected to function like enforcement officers, and Due Process is, at best, an afterthought.
Private attorneys, most serving on a pro bono or “low bono” basis, are among those committed to preserving some semblance of justice and fairness in this broken and dysfunctional system. And, attorneys are making a difference!
There are lots of good ideas out there on how to increase representation — something that actually helps the system produce fair and efficient results and reduce backlogs. For example, a better trained, better regulated, larger corps of “certified non-attorney representatives” working for religious and charitable organizations presents great potential.
But, with the Federal Government interested solely in mindless, wasteful, and ultimately “built to fail” enforcement efforts, at the expense of fairness and correct decisions, the burden falls to states, localities, NGOs, and private sector groups to essentially do the Government’s job for them — uphold and improve our legal system in the face of U.S. Government intransigence and incompetence.
PWS
03-13-19